June 25, 2008

The FCC Stumbles into Internet Filtering

Filed under: Add new tag, censorship, law — wseltzer @ 4:46 am

What could be bad about free wireless Internet access? How about censorship by federally mandated filters that make it no longer “Internet.” That’s the effect of the FCC’s proposed service rules for Advanced Wireless Service spectrum in the 2155-2180 MHz band, as set out in a July 20 Notice of Proposed Rulemaking.

Acting on a request of M2Z Networks, which wants to provide “free, family-friendly wireless broadband,” the FCC proposes to require licensees of this spectrum band to offer free two-way wireless broadband Internet service to the public, with least 25% of their network capacity. So far so good, but on the next page, the agency guts the meaning of “broadband Internet” with a content filtering requirement. Licensees must keep their users from accessing porn:

§ 27.1193 Content Network Filtering Requirement.
(a) The licensee of the 2155-2188 MH band (AWS-3 licensee) must provide as part of its free broadband service a network-based mechanism:

(1) That filters or blocks images and text that constitute obscenity or pornography and, in context, as measured by contemporary community standards and existing law, any images or text that otherwise would be harmful to teens and adolescents. For purposes of this rule, teens and adolescents are children 5 through 17 years of age;

(2) That must be active at all times on any type of free broadband service offered to customers or consumers through an AWS-3 network. In complying with this requirement, the AWS-3 licensee must use viewpoint-neutral means in instituting the filtering mechanism and must otherwise subject its own content—including carrier-generated advertising—to the filtering mechanism.

(b) The AWS-3 licensee must:

(1) inform new customers that the filtering is in place and must otherwise provide on-screen notice to users. It may also choose additional means to keep the public informed of the filtering, such as storefront or website notices;

(2) use best efforts to employ filtering to protect children from exposure to inappropriate material as defined in paragraph (a)(1). Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content as defined in paragraph (a)(1) not be accessible as part of the service.

There are clear First Amendment problems with government-mandated filtering of lawful speech. The Supreme Court reminded us that a decade ago, striking the Communications Decency Act, the first unconstitutional effort to censor the Net. It’s still lawful for adults to view and share non-obscene pornography, and still unlawful for the government to restrict adults from doing so. But this rule digs deeper architectural problems too.

Like or hate lawful pornography, we should be disturbed by the narrow vision of “Internet” the filtering rule presupposes, because you can’t filter “Internet,” you can only filter “Internet-as-content-carriage.” This filtering requirement constrains “Internet” to a limited subset of known, filterable applications, ruining the platform’s general-purpose generativity. No Skype or Joost or Slingbox; no room for individual users to set up their own services and servers; no way for engineers and entrepreneurs to develop new, unanticipated uses.

Why? To block naked pictures among the 1s and 0s of Internet data, you need first to know that a given 11010110 is part of a picture, not a voice conversation or text document. So to have any hope of filtering effectively, you have to constrain network traffic to protocols you know, and know how to filter. Web browsing OK, peer-to-peer browsing out. You’d have to block anything you didn’t understand: new protocols, encrypted traffic, even texts in other languages. (The kids might learn French to read “L’Histoire d’O,” quelle horreur!) “Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content … not be accessible as part of the service.”

The Internet isn’t just cable television with a few more channels. It’s a platform where anyone can be a broadcaster – or a game devleoper, entrepreneur, activist, purchaser and seller, or inventor of the next killer app. Mandated filtering is the antithesis of dumb-pipe Internet, forcing design choices that limit our inventive and communicative opportunity.

Edit M2Z’s prepared text to just say no to filterband.

See also Scott Bradner, David Weinberger, Persephone Miel.

6 Comments »

  1. Legal gobbledygook aside, this is a ridiculous analysis. TV broadcasters can’t broadcast smut into our homes at their will. Why shouldn’t free internet be anything different? Blocking websites where pornography or other harmful images are clearly posted (e.g. suckmydick.com) and where banners ads or other traffic redirects might otherwise unwittingly divert a 5 yr old child is a perfectly reasonable expectation by the FCC.

    Comment by Roger Williams — June 25, 2008 @ 11:56 am

  2. >Licensees must keep their users from accessing porn

    Some may think the more porn available the better society we are building.
    Sorry, but I really don’t feel like fighting for granting our children access to porn. Not in a family oriented service, anyway.

    Comment by Nim — June 25, 2008 @ 11:58 am

  3. [...] Seltzer discusses the content filtering provision on her blog today. She notes the requirement that Should any commercially-available network filters [...]

    Pingback by isoc-ny.org - Internet Society - New York chapter — June 25, 2008 @ 4:02 pm

  4. Wow, banning porn, gee, if only it were that simple, thanks to forcing the entire industry to use the .COM vice .XXX which was proposed by the porn industry and then shot down, we have today the era of pop up advertisements, banner ads, porn web sites from across the world all over .com and .net sites…

    But hey, what happens when a “porn” item is discovered on this publicly free arena? Are the lawyers going to line up? Private citizen going to sue?

    Right now it is just about impossible to ban porn on a large scale, do they really think they are going to be able to do this?

    Comment by Thomas Roy Garner — June 26, 2008 @ 5:50 am

  5. >filters or blocks images and text that constitute obscenity or
    >pornography and, in context, as measured by contemporary community
    >standards and existing law, any images or text that otherwise would
    >be harmful to teens and adolescents. For purposes of this rule, teens
    >and adolescents are children 5 through 17 years of age;

    Aren’t they redefining both teen/adolescent (last I checked, five year olds were neither)? Wendy, do you know why they didn’t formulate it as just “minors?”

    But more to the point aren’t they redefining the law?

    Last I heard, the Supremes said the government can outlaw material based on the following standard: “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

    There really is nothing in there about harm to adolescents, which would be a hard case to prove.

    All that aside, the conflict library filtering has been going through for years shows that content can’t be reasonably filtered in a way that allows an adult restricted to the same common carrier band rightful access to important information. For example, filtering often flags sites on breast cancer or AIDS prevention. Although these sites may portray primary or secondary sexual characteristics, the fight vs. the CDA showed that you can’t restrict a public resource from carrying this kind of information, as I remember.

    However, this could be judge similar to CIPA, which restricts even adult access to similar information via a library computer.

    Roger and Nim — if you think that a law that purports to protect children from the Internet has that as its only agenda, you are terrifically naive. Every law that has come down the pike to restrict rights lately is either to protect you from being bombed by terrorists, or to keep your children safe from boogeymen.

    Laws are, universally, rhetorically constructed so that in their sound bite form they seem like no one could possibly disagree with them and still be a reasonable human being. But it’s our duties as Jeffersonian citizens to transcend this kind of adrenal rhetoric and try to understand the law in the context of our whole society.

    Please think about the context of the law. If you believe that legislation is about what it overtly states, the patriot act is also about being good Americans, No Child Left Behind is about making sure every disadvantaged child in the US has a decent education, and FISA is used to tap the Friends Service Committee because they are a terrorist organization.

    We are experiencing an unprecedented erosion of our rights in recent years. My civil liberties are a baby I do not want to throw out in your perceived bathwater.

    Eternal vigilance and all that…

    Comment by Shava Nerad — June 27, 2008 @ 4:46 pm

  6. I just found this and it seems to me that this is not a good thing…
    In my opinion this can ONLY move to more censorship.
    It starts with porn and only will move on.
    I would not let my child under 10 go on the internet unless I am right next to him/her and I if my child is 5 he/she does not need to go on the internet at all.
    Where does it stop.
    The goverment as our parents.
    Grow up people and take responsibility for yourself and your own family.
    The government is not your friend.
    Its not your mother.
    It is a bunch of power hungry people who want to control every aspect of you and your families lives.
    Hope everyone knows what hyperinflation is…

    Comment by Vaquero — October 15, 2008 @ 9:41 pm

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